Petition for Writ of Certiorari — Gary A. Oram, Jr., Petitioner v. City of Dillon, Montana, et al.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 18-35038

\V*

A

Gary Oram, Jr.

Appellant,

V.

The City of Dillon; et al.,

Appellee.

DktEntry: 29-1

Before: FERNANDEZ, SILVERMAN, and WAT­

FORD, Circuit Judges.

Ninth Circuit Memorandum

Submitted February 19, 2019

Gary A. Oram, Jr., appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983

action alleging constitutional claims in connection

with his arrest for assault. We have jurisdiction under

28 U.S.C. § 1291. We review de novo. Glenn v. Wash­

ington County, 673 F.3d 864, 870 (9th Cir. 2011). We

affirm.

This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36The panel unanimously concludes this case is suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2)

3

The district court properly granted summary

judgment on Oram’s unlawful arrest claim because

Oram failed to raise a genuine dispute of material

fact as to whether Haggard and Alvarez arrested him

without probable cause. See United States v. Lopez,

482 F.3d 1067, 1072 (9th Cir. 2007) (probable cause

for a warrantless arrest exists “when officers have

knowledge or reasonably trustworthy information suf­

ficient to lead a person of reasonable caution to believe

that an offense has been or is being committed by the

person being arrested”); see also Yousefian v. City of

Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015) (“The

mere existence of some evidence that could suggest

self-defense does not negate probable cause”).

The district court properly granted summary

judgment on Oram’s excessive force claim because

Oram failed to raise a genuine dispute of material fact

as to whether Haggard and Alvarez used an unrea­

sonable amount of force against him. See Espinosa v.

City & County of San Francisco, 598 F.3d 528, 537

(9th Cir. 2010) (explaining framework for analyzing

an excessive force claim).

The district court properly granted summary judg­

ment on Oram’s equal protection claim because Hag­

gard and Alvarez were entitled to qualified immunity

under the circumstances. See Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011) (discussing qualified immunity

and noting that a right is clearly established only if

“every reasonable official would have understood that

what he is doing violates that right” (citation and in­

ternal quotation marks omitted)).

The district court properly granted summary

judgment on Oram’s conspiracy and Monell claims

because Oram failed to demonstrate an underlying

4

Constitutional violation. See Lacey v. Maricopa

County, 693 F.3d 896, 935 (9th Cir. 2012) (a claim

of conspiracy under § 1983 does not exist without an

underlying constitutional violation); Johnson v. City

of Seattle, 474 F.3d 634, 638- 39 (9th Cir. 2007) (“[M]

unicipalities are only liable under Section 1983 if there

is, at minimum, an underlying constitutional tort.”);

See also Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

691-93 (1978).

The magistrate judge did not abuse its discretion

in its disposition of the parties’ various discovery mo­

tions, including its awards of sanctions under Rule

37 for Oram’s failure to attend his deposition, and its

denial of Oram’s reconsideration motion of its order de­

nying the motion to compel production of the dispatch

records. See R & R Sails, Inc. v. Ins. Co. of Penn., 673

F.3d 1240, 1245 (9th Cir. 2012) (setting forth standard

of review for discovery rulings and sanctions).

The magistrate judge properly exercised its ju­

risdiction in ruling on Oram’s various non-dispositive

motions. See Parsons v. Ryan, 912 F.3d 486, 495 (9th

Cir. 2018) (setting forth standard of review); see also

28 U.S.C. § 636(b)(1)(A) (listing matters over which

magistrate judges have jurisdiction).

We reject as meritless Oram’s contentions that

the district court and the magistrate judge denied

him due process, the district court acted outside its

jurisdiction in dismissing the conspiracy claim, and

the clerk’s bills of costs violated his due process rights

and right against double jeopardy.

We do not consider arguments raised for the

first time on appeal, or matters not specifically and

distinctly raised and argued in the opening brief. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.

5

(2009).

Oram’s requests to bifurcate, to serve Johnson,

and for an in limine ruling, set forth in the opening

and reply briefs, are denied.

Oram’s motion for leave to transmit physical ex­

hibits (Docket Entry No. 12) is denied.

Affirmed.

6

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 18-35038

Gary Oram, Jr.,

Appellant,

v.

The City of Dillon; et al.,

Appellee.

DktEntry: 31

Before: FERNANDEZ, SILVERMAN, and WAT­

FORD, Circuit Judges.

Order Denying Motion for Rehearing and Rehearing

en-banc.

Filed May 28, 2019

The panel has voted to deny the petition for panel

rehearing.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote

on whether to rehear the matter en banc. See Fed. R.

App. P. 35.

Oram’s petition for panel rehearing and petition

for rehearing en banc (Docket Entry No. 30) are denied.

No further filings will be entertained in this closed

case.

28

IN THE UNITED STATES DISTRICT COURT FOR

- THE DISTRICT OF MONTANA BUTTE DIVISION.

No. 2:15-cv-00047-BMM

GARY ORAM, JR.

Plaintiff,

v.

THE CITY OF DILLON, CETH HAGGARD,

JEREMY ALVAREZ, and JACOB JOHNSON

Defendants.

Dist.Doc: 145

Before: United States District Court Judge Brian

Morris.

Order: Dismissing Claim, Jacob Johnson.

Filed: August 23, 2017.

Plaintiff filed his Complaint in this case on Sep­

tember 14, 2015. (Doc. 1). A summons was issued for

Defendant Jacob Johnson (Johnson) on September 28,

2015. (Doc. 7). Federal Rule of Civil Procedure 4(m)

requires service of a summons and complaint within

90 days after the filing of the complaint. The Court

issued an Order on December 28, 2016, requiring

Plaintiff to show cause by January 27, 2017, why his

claims against Johnson should not be dismissed for

failure to effect service on Johnson. Plaintiff has failed

to respond to the Court’s Order. There is no indication

in the record that Plaintiff effected service on Johnson.

7

The Court dismissed all of Plaintiffs claims

against Defendants Ceth Haggard, Jeremy Alva­

rez, and the City of Dillon, with prejudice, on De­

cember 20, 2016. (Doc. 132).

Accordingly, IT IS ORDERED:

1. All claims against Defendant Jacob Johnson

are dismissed without prejudice for failure to effect

service on Johnson.

2. The Clerk is directed to enter a judgment

that dismisses all claims against Defendants Ceth

Haggard, Jeremy Alvarez, and the City of Dillon,

with prejudice; and dismisses all claims against

Defendant Johnson without prejudice.

DATED this 23rd day of August 2017.

s/Brian Morris, United States District Court

Judge.

8